In re Estate of Davis

Van Fleet, J. W. W. Davis died intestate in the county of Butte, in this state, being a resident of said county at the time of his death, and leaving estate therein.

Two applications were made for letters of administration upon his estate, one by the public administrator of said county and the other by B. F. Woolner, as the nominee of Alice A. Davis, the widow of said deceased.

The court granted the application of the public administrator, and denied that of Woolner, and the latter appeals.

At the hearing it appeared that on the seventh day of May, 1878, the said W. W. Davis and Alice A. Davis, his wife, entered into written articles of separation, whereby they agreed to divide their property, relinquish all claims of every nature upon the property of each other then owned or thereafter to be acquired, and to immediately separate and live apart from each other during their natural lives. In these articles Alice A. Davis, the wife, stipulates and agrees, for the consideration expressed, “ that she will receive the same in full satisfaction of all claims she may have as the wife of said W. W. Davis on any property he now has or may in any manner acquire; .... and hereby does relinquish and surrender forever all claims of any nature she may now or hereafter have against any property that said W. W. Davis may now have or may hereafter in any manner acquire.” It further appeared that upon the execution of said articles the parties thereto immediately separated and continued to live apart as therein stipulated down to the death of said deceased; that all the terms and conditions of said articles to be kept and performed by said [455]deceased were fully executed and carried out by him; and that said articles were in full force and effect at his death.

The only question arising upon this appeal is whether, upon these facts, Alice A. Davis, as the widow of deceased, was entitled to letters of administration upon his estate. If she was, her nominee was so entitled and the order appealed from would be erroneous. The grant of letters of administration in case of intestacy is provided for by section 1365 of the Code of Civil Procedure, which reads: “ Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his personal estate or some part thereof; and they are respectively entitled thereto in the following order: 1. The surviving husband or wife, or some competent person whom he or she may request to have appointed; 2. The children; 3. The father or mother; 4.” Etc.